194 Mo. 541 | Mo. | 1906
This is an action, for damages alleged to have been sustained by plaintiff by being run against by one of defendant’s cars, on or about the 12th day of November, 1900, in Kansas City, Missouri.
The petition alleges the incorporation of defendant and that it was operating a cable street railway on East Fifteenth street, in said city, and that plaintiff, while attempting to walk across said Fifteenth street, at the junction of Fifteenth and Cherry streets, was run against by one of the street cars operated by the defendant on its Fifteenth street line, and was knocked down, bruised, injured and damaged to the extent of ten thousand dollars, the precise injuries to plaintiff being set forth. The petition further sets forth that when the plaintiff started to cross said street, he looked for
The defenses were a general denial and a plea of contributory négligence.
The salient facts are about as follows:
The defendant was operating a double-track street railway on East Fifteenth street in Kansas City. The cars going east used the south track, and those going west, the north track. Two different lines-were operated over this street by defendant, one known- as the Fifteenth street line, using yellow cars, and running east and west on said street; the other, known as the Holmes street line, using red cars, and running east on said street to Holmes street, and then turning south on Holmes, both lines using the same tracks as far east as Holmes street. The evidence tends to show that the injury of which plaintiff complains took place on November 24th, 1900, where Cherry street, the first street ‘west of Holmes, crossed Fifteenth; that Fifteenth street, from Holmes west to Cherry, is almost level,
Thomas Hanway testified that he passed over this line at about the time of evening that this injury occurred, and under similar lights and conditions; that one could see a party approaching the car tracks at this crossing, and see the way his head was turned and the way he was looking, at a distance of more than sixty feet.
Mat C. Stone, a witness, testified that when plaintiff was walking south, just before the injury, he was watching the Holmes street car; that plaintiff was within three or four feet of witness when he turned to cross Fifteenth street, and that the west-bound car struck him just after he stepped on the track; that he, witness, did not hear the bell ring before the accident.
At the conclusion of plaintiff’s evidence the court, over the objection and exception of plaintiff, instructed the jury that, under the pleadings and evidence, their verdict must be for the defendant.
Plaintiff insists that the gripman on said westbound car saw, or could have seen him before the car approached within sixty feet of the crossing, and that he saw, or could have seen, that plaintiff Was placing himself unknowingly in a dangerous position, and should have taken measures to avoid injuring him; that the car was going at full speed and gave no warning of its approach, and that as the gripman failed to give such warning, as was his duty to do-, the company is liable.
The evidence shows that the east-bound car, when
It is not contended that plaintiff was not guilty of negligence in attempting to cross the track, without looking east to see if a car was approacMng on that track, but’that defendant was guilty of negligence concurrently with plaintiff, and that the gripman of the car knew, or by the exercise of proper diligence might have known and observed, that it was plaintiff’s purpose to cross the track in front of the car, and could have stopped the car in time to have avoided the injury. Plaintiff testified that he did not slacken his pace, or look to see if a car was approaching from the east, from the time he left the sidewalk at the northeast cor
In a some'what similar case to this (Boyd v. Railroad, 105 Mo. l. c. 380), Brace, J., in speaking for the court, said:
“But it is contended that as the walk on which the deceased was pursuing his way to the depot was in plain view of defendant’s engineer on the locomotive, and the deceased could have been seen upon it, in haste making his way toward the depot, the engineer ought to have commenced checking the speed of his train in time to have permitted the deceased to cross before it in safety. To this position the instructions given in this case furnish a full and complete answer in declarations of law supported by all the authorities, ‘that it was the duty of deceased to look and listen if he could see or hear the train, for the purpose of avoiding injury by it, and, if at any time he might have stopped his progress and avoided injury, then he was guilty of contribT utory negligence;’ and, ‘if the servants of the defendant in charge of its train saw the deceased approaching the track, then they had the right to presume that he would not- attempt to cross the track immediately in front of the train, and to proceed without abating the speed of the train.’ If the instructions had stopped here, the law of the case would have been properly declared on the evidence, which is equivalent to saying there was no evidence to take the case to the jury, and
In the case of Van Bach v. Railroad, 171 Mo. l. c. 346, Valliant, J., speaking for the court, says:
“But in this case, what reason had the defendant’s servants to suppose that this man would act as he did?
In Roenfeldt v. Railroad, 180 Mo. l. c. 565, Valliant, J., said:
“But the theory of the plaintiff’s case, as shown in his petition, his evidence and the argument in his brief, is that, admitting that the plaintiff through his own negligence put himself in a position of peril, yet the
It is also iusisted that the court committed error in refusing to allow one Hanway, a witness for plaintiff, to testify as to whether he knew within what distance one of defendant’s cable cars, when running at its usual rate of speed, could be stopped, and if so, to state within what distance it could be stopped without injury to the passengers. The court refused to allow the witness to answer the questions upon the ground that it had not been shown that witness was qualified to express an opinion upon the matter. We think the court properly refused to allow the witness to answer, for the reason that it had not been shown that he had, by practical tests and observation, qualified himself to
The facts clearly show that plaintiff’s injury resulted from his own negligence solely, for which‘the defendant should not be held liable.
The judgment is affirmed.